GERMANY : THE BUNDESRAT - THE FEDERAL COUNCIL

Context:

A reform of the German federal system, adopted in July 2006, came into force in 2007.

A new definition of the competences of the Federation and Länder was set: the autonomy of the Länder has been reinforced by new competences; in compensation, the number of federal bills that will be eligible to be passed without endorsement from the Bundesrat will increase. Only 35 to 40% of federal bills shall have to be approved by the Bundesrat, where the Länder representatives sit, to 60 % previously. The new provisions give the possibility to the majority in the Bundestag to reduce the risks of defeat of legislative texts in the event of a different majority in the Bundesrat. This constitutional revision makes also possible to accelerate the legislative work at the federal level.

I - COMPOSITION

The Bundesrat is composed of members of government from the 16 Länder, which appoint and recall members.

This amounts to 69 members.

II - APPOINTMENT SYSTEM

Each Land government chooses among their members those who shall sit in the Bundesrat. In practice, the members of Länder's governments who do not sit in the Bundesrat are appointed as deputies, giving them the possibility to participate to the debates and to vote in the Bundesrat. To leave the government of a Land, or to be dismissed by it, leads to the inevitable loss of the position as member of the Bundesrat.

Each Land can delegate to the Bundesrat as many members as the number of votes it has. Each Land has at least 3 votes, and therefore 3 delegates; Länder with over two million inhabitants have 4 votes, those with over six million inhabitants have 5, and those with over seven million inhabitants have 6 votes.

The duration of the term of office is the same as of the Land government's. From the constitutional point of view, the Bundesrat is a «permanent body», regularly renewed with the elections of regional parliaments. Because of this, these elections always have political consequences on the Federation.

III - SESSION CALENDAR

The Bundesrat helds one single session per year. The President of the Chamber convenes the Bundesrat. He must convene it at the request of at least two Länder representatives, or of the Federal Government. In practice, the agenda of plenary sessions is established in advance for the calendar year, according to the sitting weeks in the Bundestag. The Bundesrat convenes about thirteen times a year, with three-week intervals.

IV - RELATIONS WITH THE OTHER CHAMBER AND EXECUTIVE

When fulfilling their tasks, the Federal State and the Länder shall monitor each other; but they also have to take into account each one's interests, and exert a common action.

In this context of shared competences, the German federalism differs from all other federal systems because of the direct participation, through the Bundesrat, of Länder governments to the decisions of the Federal State. In the Bundesrat, this is in fact the will of the Land which shall be expressed, and not that of its members as individuals. As indicated in the Basic Law, each Land can express its vote only globally. Before any vote in the Bundesrat, the government of each Land must therefore reach an agreement on the way they think to express their votes. It has to be said that, in the Bundesrat, abstention does not mean a neutral position: any abstention equals a negative vote.

A - LEGISLATIVE POWER

1) Legislative initiative

It is attributed to the Bundesrat concurrently with the federal Government and Bundestag members.

Initiatives can originate from a Land or several Länder. If Länder wish the Bundesrat to introduce a government bill, they shall table a motion along the same lines. The Bundesrat gives its decision through a resolution. If the text that Länder wished is supported by an absolute majority, it becomes a Bundesrat bill, strictly speaking.

Government bills are then sent to the Federal Government, and later to the Bundestag within 6 weeks.

2) Right of amendment

The Bundesrat takes a stand on texts submitted to it, but cannot modify them. The Bundesrat does not have, strictly speaking, the possibility to amend government or draft bills.

Nevertheless, in practice, when the Bundesrat comes to a decision on a text, either to give a previous opinion (for the examination of government draft bills in first reading: see below), or to approve it outright, to reject it outright, or else to call for a convening of the Mediation Committee, it supports its stand with proposals of modifications of the text. As the Bundesrat has a significant power of blocking in the legislative procedure, the Federal Government and the Bundestag are strongly encouraged to take into account the proposals of amendment expressed by the Bundesrat, if they want to see a text adopted.

3) Ordinary legislative procedure

The course of the legislative procedure may differ, depending on whether it is a text initiated by the Federal Government, the Bundestag or the Bundesrat. It also may differ depending on whether it is a so-called consent bill or objection bill.

a) Submission and transmission

Whenever draft bills are issued by the FederalGovernment (namely 2/3 of texts), the Bundesrat has the right to express itself on the drafts before the German Bundestag, during a «first reading». It may then give its stand within six weeks - three or nine in some specific cases. It frequently proposes amendments, additions or alternatives.

At this stage of the legislative process, the Federal Government and the Bundestag are not bound yet by the Bundesrat's stand. But the «first word» is a significant signal, which suggests what the Bundesrat's «final word» will be during the examination in second reading. That is why its opinions should not be ignored.

After that, the Federal Government gives its opinion through a written «answer». The draft bill, the Bundesrat's opinion, as well as the answer of the Government are then tabled to the Bundestag.

Concerning legislative initiatives coming from the Bundestag, the Lower Chamber discusses directly on the text it has introduced. The text is submitted to the Bundesrat only in second reading.

Concerning draft bills issued by the Bundesrat, they are submitted in the first place to the Federal Government so that it could give a stand. Then, they are sent to the Bundestag within six weeks - three or nine in some specific cases.

b) The Bundestag's vote

After previous consideration by the Bundesrat (if it is a draft bill) or by the Government (if it is a Bundesrat initiative), or else immediately (if it is a proposal from the Bundestag), the Bundestag is led to vote on the text, after amending it, if needed. The President of the Bundestag then sends the adopted text to the Bundesrat for a second reading.

It has to be said that, in the case of a text initiated by the Bundesrat, if ever the Bundestag rejects the adoption of the text, it is then impossible to refer to the Mediation Committee to overcome this refusal, with the result that the initiative fails definitively. The procedure applicable to the Bundesrat legislative proposals is therefore relatively unfavourable to the latter.

c) Bundesrat debates in second reading

In second reading, the Bundesrat has more or less room for manoeuvre, depending on whether this is about so-called consent bills or objection bills.

For consent bills, which represent about half of the federal bills, the Bundesrat is really a joint decision-maker with the Bundestag. In other words, these bills cannot be adopted without the express consent of the Bundesrat.

The Basic Law specifies which bills need the Bundesrat consent.

They are:

- bills modifying the Constitution; in this case, the Bundesrat approval is even required at the two-third majority (46 votes);

- bills affecting Länder finances, on one way or another;

- bills questioning the organisational and administrative autonomy of Länder;

- bills leading to transfers of sovereignty to the European Union.

The examination by the Bundesrat in second reading may lead to several possible scenarios.

- The text voted by the Bundestag is entirely approved by the Bundesrat in second reading; in this case, the bill is adopted once and for all.

- The text voted by the Bundestag is rejected by the Bundesrat. The Bundestag or the Government have the possibility to refer to the Mediation Committee. If it is not possible, the text is definitively rejected.

- The Bundesrat is not pleased with the text as it is, but not so much that it rejects it totally: it therefore asks for the Mediation Committee to convene.

In the second and third cases, the final fate of the text shall be specified during a third reading, depending on the results of the discussions in the Mediation Committee.

Concerning objection bills (namely all the bills which are not consent bills), the Bundesrat influence is more limited. If it approves the text from the Bundestag in second reading, the bill is adopted once and for all. Otherwise, it shall ask for the Mediation Committee to convene. Unlike with consent bills, it cannot refuse them at this stage.

d) Mediation procedure

During its sessions, the Mediation Committee tries to find an acceptable compromise between the Bundestag and the Bundesrat. There are several possible scenarios.

- The Committee may ratify the text adopted by the Bundestag.

- It may submit proposals to amend it.

- It may advise the complete withdrawal.

- It may finally fail to take a stand. If no proposal of mediation is adopted during the second session about the bill, each member is authorized to ask for the closing of the procedure. If there is no agreement at the end of the following session, the procedure ends - without mediation.

e) Continuation of the procedure

If the Mediation Committee proposed some modifications to the text voted by the Bundestag, the latter reconsiders the text, gives a decision on the modifications it wiches to ratify, then sends the text to the Bundesrat. Otherwise, the text returns directly to the Bundesrat.

If during the third reading, the Bundesrat approves the text voted by the Bundestag, the bill is adopted once and for all.

If on the other hand, the Bundesrat rejects the text, there are two possibilities. If it is a consent bill, this defeat is tantamount to a final abandonment of the text. If it is an objection bill, the Bundestag has the possibility to remove the Bundesrat veto. If the Bundesrat decides to raise an objection at the absolute majority of its members, its objection can only be defeated by an absolute majority at the Bundestag. If the Bundesrat raises an objection at the two-third majority, the Bundestag will only be able to defeat it with two thirds of votes cast, and provided that these votes account for at least half of the totality of its members.

4) Specific legislative procedures

a) State of legislative necessity

In the event that the vote of confidence requested by the Federal Chancellor is not granted by the majority of the Bundestag members, and that the Chancellor does not ask for the dissolution of the Bundestag, the Federal President may declare a state of legislative necessity, at the request of the Federal Government and with the Bundesrat approval, with regard to a draft bill rejected by the Bundestag, even though the Federal Government has declared it to be urgent. It would be the same even if a draft bill has been rejected though the Federal Chancellor would have accompanied it with the vote of confidence provided for by Article 68.

In the event that, after declaring a state of legislative necessity, the Bundestag rejects the draft bill again, or if it adopts it in terms the Federal Government declares unacceptable, the bill is considered passed, if the Bundesrat issues its approval. It would be the same if the Bundestag does not vote the draft within four weeks after receiving the latest proposal,

The Basic Law cannot be modified, or abrogated, or suspended, as a whole or in part, by a bill definitively adopted in accordance with provisions related to the state of legislative necessity.

b) Specific provisions on financial matters

Draft budget and financial bills are sent to the Bundesrat at the same time as they are submitted to the Bundestag. The Bundesrat may adopt a position on draft bills within six weeks (three weeks for rectification drafts).

c) Changes to the Basic Law

Bills amending the Basic Law are consent bills, whose adoption procedure has already been described. The specificity of constitutional reforms is that they must be approved by two thirds of the Bundestag members, as well as two thirds of the Bundesrat members.

B - ACCOUNTABILITY

1) Budgetary accountability

In the year following the implementation of the budget, the Federal Minister of finances shall submit to the Bundesrat (and Bundestag) an account justifying all budget revenue and expenditure in the following year, as well as a statement of debts and credits to obtain approval from the Federal Government.

2) With regard to European issues

Since 1988, the Bundesrat may set up a «European chamber», a kind of committee composed of members entitled to represent each one a Land. The decisions this chamber takes equal the decisions from the Bundesrat. The chamber adopts opinions for and on behalf of the plenary assembly. The number of votes is expressed like in the Bundesrat.

V - SPECIFIC PROVISIONS

A - STATE OF DEFENCE

The Bundesrat approval is required to establish - by the Bundestag - that federal territory is the object of armed aggression or that such aggression is imminent.

In this context, the Federal Government's draft bills which have been declared urgent are sent to the Bundesrat at the same time as to the Bundestag. Both assemblies deliberate these projects immediately and together.

Joint commission

If the joint commission (two-thirds of whose members are from the Bundestag, one-third from the Bundesrat, each representing one Land and not bound by instructions) considers that there are insurmountable obstacles preventing the assembly of the Bundestag (a majority of two-thirds of votes cast, corresponding to the majority of members comprising the commission) or that the Bundestag cannot deliberate because a quorum is not achieve, the commission can then replace both assemblies and exercise their joint prerogatives.

At its own initiative or at the request of the Bundesrat, the Bundestag may with Bundesrat approval add to bills adopted by the joint commission.

Other measures taken by the joint commission or the Federal Government to remove the danger must be raised, should both assemblies so decide.

End of the state of defence

From its own volition or at the request of the Bundesrat, the Bundestag may decree at any time an end to the state of defence, with the Bundesrat's approval. This is done by means of a decision promulgated by the Federal President.

B - REGULATORY COMPETENCE

The Bundesrat approval is required for most rules and regulations issued by the Federal Government and by some Federal Ministers. The examination of these drafts, to which the Bundestag participates only under exceptional circumstances, keeps the Bundesrat very busy. In this context, most of the deliberations take place in the committees.

C - IMPEACHMENT OF THE FEDERAL PRESIDENT

It is decided by the Bundesrat (or Bundestag) before the Federal Constitutional Court for deliberate breach of the Basic Law or another federal bill, requiring two thirds of votes.

D - INTERIM FOR THE PRESIDENCY

In the event of incapacity by the Federal President, the Federal President's powers are assumed by the Bundesrat President.

E - POWERS OF NOMINATION

Half the members of the Federal Constitutional Court are elected by the Bundestag, and the other half by the Bundesrat.

The Bundesrat also appoints representatives as delegates to the board of directors of the Federal Office for employment, as well as to other public bodies.

It is invested with a right of proposal or approval to fill many positions: nomination of the public prosecutor to the Federal Court of Justice, public prosecutors and presidents of the Bundesbank regional managements.